A Constitution of Convenience in Ukraine

"JURIST Guest Columnist Alexei Trochev of the University of Wisconsin Law School says judicial dependence in Ukraine did not begin with Yanukovych and it will not end with his departure from politics because Yanukovych's successor will also adapt the judiciary for his or her own needs and constitutional rules are in favor of the powerful president....

In September 2010, the Constitutional Court of Ukraine declared unconstitutional the 2004 constitutional reform [PDF] that restored the 1996 Constitution as of the day of the judgment and ordered all state agencies to bring legislation in compliance with that Constitution. In an instant, Ukraine's president received unilateral powers to nominate candidates for prime minister (without parliamentary ratification), appoint cabinet ministers, to dismiss the government without parliamentary approval, and to cancel any government resolution. While the critics quickly condemn this ruling as a sign of the judicial dependence that destroyed Ukrainian democracy, they fail to ask why the Court did it now and why fiercely competitive politics lead to a pliant judiciary. The Ukrainian case shows that fragmentation of political power, gridlocked governments, and vibrant elections are not automatic guarantees for either judicial independence or the supremacy of national constitutions.

Tainted Constitution-Making

To experts in Ukraine's law and politics, this ruling was not surprising. As former Constitutional Court Justice Volodymyr Voznyuk said, it was just a matter of time before the constitutional reform were to be repealed by the Constitutional Court. The 2004 constitutional reform was adopted in violation of constitutional procedure and the judicial invalidation of this reform is easier than constitution-making in a fractured parliament. The Constitutional Court on many occasions struck down laws on the grounds of parliament's noncompliance with constitutionally prescribed law-making procedures, regardless of how minor these violations were.

The 2004 constitutional reform was a product of Ukraine's Orange Revolution, a month-long, street-level, peaceful protest over fraudulent presidential elections, during which the outgoing President Leonid Kuchma handpicked prime minister Vyktor Yanukovych to be his successor. Kuchma later reneged and, under the watchful eye of the mediators from the European Union, he negotiated with the opposition candidate Viktor Yushchenko [BBC profile] to transfer power from the presidency to parliament and the prime minister via constitutional amendments. These amendments would place the prime minister, who would be elected by the parliament's ruling coalition, in charge of appointing cabinet ministers and most day-to-day executive policy-making. According to Andrew Wilson, Kuchma insisted on amending the constitution in order to transform the parliament into a safe haven for his cronies. He threatened not to sign any changes to the elections law that would allow any kind of re-run of elections, which in effect denied Yushchenko an election victory. Yushchenko agreed to constitutional reform because he was sure that his party would win upcoming parliamentary elections scheduled for early 2006, and would then reform the constitution according to his wishes. Meanwhile, Yanukovych felt deeply humiliated and betrayed.

The parliament adopted the constitutional reform with 402 out of 450 parliamentary votes and declared that the constitutional changes were to take effect January 1, 2006. President Kuchma immediately signed the constitutional amendments and the changes to elections law, even though Articles 155 and 159 of the 1996 constitution required that the constitutional reform bills to be passed by at least 300 votes, twice at consecutive parliamentary sessions, and approved by the Constitutional Court prior to their adoption. There is no doubt that he knew he could have followed the constitutionally mandated procedure: he enjoyed a friendly parliament and constitutional court and both institutions showed that they would act quickly upon his wishes. He chose not to, knowing that these violations could be later used as a pretext for appealing unfavorable court judgments. Yushchenko did not object, as he had no time for respecting constitutional subtleties. As a result of this tainted constitution-making, Yushchenko won the re-run of the runoff vote with only 52 per cent of the vote against Yanukovych's 44 per cent, despite much friendlier media coverage and much cleaner, fairer and free elections.

Only the Election Winners Wanted to Reverse the 2004 Constitutional Reform

Following this crucially important yet weak electoral victory, both Yushchenko and Tymoshenko criticized the 2004 constitutional reform at every corner. On December 27, 2005, the National Commission for Strengthening Democracy and Asserting the Rule of Law, which consisted of 30 respected jurists and headed by then Justice Minister Serhiy Holovatyi, declared two holdings. First, the way in which the 2004 constitutional reform bill was adopted violated Article 159 of the 1996 Constitution and therefore was null and void from the moment of its adoption. Second, the Constitutional Court had the power to strike down this bill as unconstitutional at any time. At the same time, the Parliamentary Assembly of the Council of Europe expressed concern about the validity of the 2004 constitutional reform. Then Prime Minister Yulia Tymoshenko campaigned to reverse the 2004 constitutional reform via national referendum (a move Yushchenko opposed at the time) and repeatedly threatened to challenge constitutionality of the 2004 constitutional reform in the Constitutional Court. She had her eyes on winning next presidential elections and did not want to rush the reversal until she would secure presidency.

However, the winners of the Orange Revolution were unable to return to the 1996 Constitution for three reasons. Tthey fought bitter inter-personal battles and lost popular support. Also, they lacked 300 votes in the parliament, which are required for amending the constitution. And finally, they did not have support of 10 justices of the Constitutional Court, a minimum number required to declare laws unconstitutional. Meanwhile, the loser of the Orange Revolution, Yanukovych's party, succeeded in paralyzing the Constitutional Court. Fortunately for Yanukovych, the nine-year terms of the sitting constitutional court justices expired in 2005. His party successfully blocked the appointment of the new justices until the fall of 2006 when it managed to assemble ruling majority, appoint Yanukovych as prime-minister and ban the Constitutional Court from reviewing the constitutionality of the 2004 constitutional reform. Yanukovych's party was quite comfortable in functioning under the 2004 constitutional reform and was not interested in bringing back a powerful presidency unless Yanukovych were to become president. The 2004 constitution lasted as long as it did only because none of the three key rival political groups were able to bring back the 1996 Constitution.

Judicial Dependence in Highly Competitive Politics

Not surprisingly, when Yanukovych won the 2010 presidential election with 49 per cent of the vote against Tymoshenko's 45 percent, he set his sights on bringing back the 1996 Constitution with the help of the Constitutional Court. In July 2010, 252 legislators, who were members of his party, petitioned the Constitutional Court to declare the 2004 constitutional reform unconstitutional. And when the Court promptly obliged, after a three-hour televised public hearing in which nobody supported constitutional reform, and a week of judicial deliberations behind closed doors, the election losers, like Tymoshenko and Yushchenko, blasted the Court for destroying Ukraine's democracy. How and why did Yanukovych, who many thought would disappear from Ukraine's high politics after the defeat in the Orange Revolution, succeed where his rivals failed? The answer that does not help is that the Constitutional Court became a rubber-stamp institution for President Yanukovych, who wanted a return to the 1996 Constitution with its expanded presidential powers.

Yanukovych succeeded because he had improved techniques for keeping the Constitutional Court under control, which had already been developed by his rivals and predecessors. Packing the Court was necessary to ensure a pro-Yanukovych majority because his predecessors proved that replacing maverick judges with loyal ones is the safest ways to ensure that the Court would not cause problems for the election winners.

In February 2008, the Constitutional Court threw out the constitutional review petition of 102 legislators The Court reasoned that the 2004 constitutional amendments had entered in force and became an integral part of the constitution. As a result, the Court had no jurisdiction over the constitutionality of constitutional norms.

However, following Yushchenko's dismissal of three Justices on dubious constitutional grounds and packing of the Court with three new justices, the Constitutional Court diametrically reversed its position in June 2008. Acting on the petition of 47 legislators from Yushchenko's party, the Court declared that it had jurisdiction over constitutional amendments, which had already entered in force. This judge-made reversal opened the door for the judicial invalidation of the 2004 constitutional reform well before it became clear that Yanukovych would win presidency. The Orange coalition should blame itself for failing to return the 1996 Constitution.

Judicial dependence in Ukraine did not begin with Yanukovych and it will not end with his departure from politics. As Kataryna Wolczuk has shown, the young Constitutional Court during the dominant power politics of Kuchma's presidency appeased the executive branch in order to stay alive. However, as I have argued, since the 2004 Orange Revolution judicial dependence and pressure on the Constitutional Court and other courts only broadened and deepened. Politicians of all stripes and top government officials capture courts and brag about bribing judges when there is highly competitive politics and gridlocked government. This is because the rulers bear no costs for pressuring judges, yet they reap substantial benefits from pliant judiciary. And it shows that Ukraine lacks real rule of law.

Meanwhile, the Constitutional Court (and the rest of the judiciary) failed to build long-term alliances, as neither lawyers nor civil society nor politicians listened to the litany of the Justices' complaints about political pressure. Key political groups used the tribunal as a constraint on their rivals, not on themselves. It survived the feckless pluralism of Yushchenko's presidency only because it catered to the short-term power needs of political rivals. The Court will survive Yanukovych's regime if only to provide golden parachutes for important people with law degrees and to serve as a symbol of Ukraine's independence. Yanukovych's successor will adapt the Court for her or his own needs. Until then, constitutional supremacy and rigidity will matter because constitutional rules are in favor of the powerful president. This is still much better than the fate of the Constitutional Court of Kyrgyzstan, which was abolished in June 2010 and whose judges are now facing criminal charges for repealing the constitutional amendments, which had been adopted in November 2006 and limited the powers of the ousted President Kurmanbek Bakiyev.

Dr. Alexei Trochev teaches law and politics at the University of Wisconsin-Madison. He is the author of "Judging Russia: The Constitutional Court in Russian Politics, 1990-2006" (Cambridge University Press, 2008).

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